Extracted from text ... LEGAL HISTORY, LEGAL CULTURE AND TRANSFORMATION IN A CONSTITUTIONAL DEMOCRACY1 AJ van der Walt (Stellenbosch University; Visiting Professor, University of South Africa) they flutter behind you, your possible pasts some bright eyed and crazy, some frightened and lost a warning for anyone still in command of their possible future to take care Pink Floyd ""Your Possible Pasts""2 1 Introduction: The inevitability of transforming social relations Around 1989, when it began to appear that political change in South Africa was not only inevitable but might actually happen without a bloody revolution, white South Africans who recognised the injustices of ..

Extracted from text ... CONTINUITY AND DISCONTINUITY OF PRIVATE/CIVIL LAW IN EASTERN EUROPE AFTER WORLD WAR II Introduction In the countries of Central and Eastern Europe, the legal traditions that are in substance based either directly on Roman law or on Pandectist legal traditions have to be taken into consideration. It should be emphasised that in legal literature this aspect has until recently been largely neglected.

Extracted from text ... TOWARD A EUROPEAN IUS COMMUNE IN TORT LAW: A PRACTICAL EXPERIENCE Johann Neethling (University of South Africa) 1 Introduction It is common knowledge that the principles of tort law (or the law of delict) in various European countries differ considerably. The traditional differences between the casuistic common-law approach in England (and other countries that remain close to that system) and the generalising approach of the continental civil-law countries are well-known.1 Moreover, even civil-law countries, such as France and Belgium on the one hand, and Germany and Austria on the other, differ fundamentally as far as particular aspects of ..

Extracted from text ... SAME-SEX UNIONS REVISITED: THE CONCEPT OF MARRIAGE IN TRANSFORMATION Joan Church (University of South Africa) 1 Introduction ""Finding themselves strongly attracted to each other, two people went out regularly and eventually decided to set up home together. After being acknowledged by their friends as a couple for more than a decade, they decided that the time had come to get public recognition and registration of their relationship, and formally to embrace the rights and responsibilities they felt should flow from and attach to it. Like many persons in their situation, they wanted to get married.

Extracted from text ... RECENT CHANGES IN BRAZILIAN CONSTITUTIONAL LAW The aim of this paper is to give a brief overview of constitutional life in Brazil. In the last 183 years of its history, Brazil went through much turbulence and had eight constitutions. From 1500, the year of its discovery, to 1822, the year of its independence, Brazil was a Portuguese colony and its law was therefore the law of the Kingdom of Portugal. In 1808 the Portuguese Royal Family had to escape from Napoleonic troops that invaded Portugal and came to Brazil.

Extracted from text ... IMPACT LITIGATION AS TOOL TO TRANSFORM SOCIETY AND REALISE THE MOST BASIC FUNDAMENTAL RIGHTS OF WOMEN AND CHILDREN Trynie Davel (University of Pretoria) 1 Introduction Impact litigation, or public interest litigation, is a powerful tool to realise the rights of vulnerable groups of people in our transforming society. Our government has ratified numerous far-reaching international instruments1 and we pride ourselves on a constitutional dispensation that guarantees fundamental rights2 and safeguards human dignity.3 However, for certain members of our society, these rights are in reality worthless.

Extracted from text ... THE IMPACT OF ARMED CONFLICT ON CIVIL SOCIETY - R V CELLIERS 1903 ORC 1 JH de Bruin (University of the Free State) 1 Introduction The Anglo-Boer War (1899-1902) holds pride of place in the dismal wars that marked the face of Africa in the course of the nineteenth century. This war raged with devastating consequences over large areas of South Africa, causing death and destruction. At the conclusion of hostilities both the Orange Free State and the South African Republic lost their independence while Great Britain established its supremacy on the South African sub-continent.

Extracted from text ... RESTORING BALANCE TO OUR CRIPPLED JURISPRUDENCE - GUIDELINES FROM LEGAL HISTORY Andrew Domanski (University of the Witwatersrand) 1 Introduction For a period of many centuries, stretching from antiquity to the start of the nineteenth century, Western legal thought adopted, explicitly or otherwise, a notion of jurisprudence which was balanced and complete. This broad vision of legal wholeness embraced both human law and divine law.1 It was widely accepted throughout this long period, which I shall call the period of balanced jurisprudence, that no legal order could function properly in which human law and divine law operated independently of ..

Extracted from text ... COMPARING CRIMINAL LAW RULES: A ROLE FOR CUSTOMARY LAW CONCEPTS? SV Hoctor (University of KwaZulu-Natal - Pietermaritzburg) 1 Introduction The motivation for this article, apart from my own curiosity, proceeds from two primary sources. At a previous conference of the Southern African Society of Legal Historians, held in 1999, Justice Albie Sachs issued a challenge for greater recognition of the need to grant customary (or ""indigenous"") legal principles their rightful status in the broader South African legal context. This challenge echoed his words in his judgment in the landmark case of S v Makwanyane...

Extracted from text ... A CRITICAL ANALYSIS OF THE ROLE OF TRADITIONAL LEADERSHIP IN MODERN SOUTH AFRICAN LAW Caroline Nicholson (University of Pretoria) 1 Introduction Ten years into a new democracy, South Africa remains a country in the throes of transformation. The law, as an agent of social change, must meet the demands of a diverse population. To this end, the South African Constitution1 requires that laws be developed to give recognition to the rich diversity within society, creating unique challenges for jurists to bridge the gap between the Western national legal system and a body of indigenous customary laws applicable to ..

Extracted from text ... ON PRE-DIGESTS David Pugsley (University of Exeter) It is often worth while to read the works of unorthodox scholars and heretics. The advantage of heretics is that they have been thinking. It is possible to agree with a theory without thinking at all, to agree with a theory for the reasons given by its author. It is difficult to disagree with a theory without thinking, without re-examining the evidence and the arguments. Bluhme's Massentheorie, first published in 1820, 1 quickly became the standard, orthodox account of the compilation of Justinian's Digest, but there have always been some people ..

Extracted from text ...CULTURAL POLICY AND THE LANDSCAPE OF THE LAW IN SOUTH AFRICA HC Roodt (University of South Africa)* 1 Introduction Profound diversity is a persistent characteristic of the international community.1 Similarly, South Africa is a multi-cultured state and cultural diversity underlies the South African legal system.2 Where different cultures exist in a society, each with its own social and legal norms, a dominant culture often emerges. Cultures other than the dominant one may then desire protection of the group against unequal treatment on account of their culture.3 Diversity also implies recognition of identity.4 International recognition of cultural diversity is ..

Extracted from text ... CHIEF JUSTICE MELIUS DE VILLIERS: A CAPE LIBERAL WITH A ROMAN-DUTCH HEART* WG Schulze (University of South Africa)** 1 Introduction It is rare for two siblings to become judges. It is even more extraordinary if one of these two becomes Chief Justice. For both siblings to become Chief Justice is indeed a unique achievement. This has happened only once in South African legal history. The two brothers who had both reached the highest judicial office were Lord Henry and his younger brother Melius de Villiers.

Extracted from text ... JUSTICE, JUSTIFICATION AND JUSTIFIABILITY IN MARLENE VAN NIEKERK'S AGAAT: A LEGAL-LITERARY EXPLORATION The world is not reasonable, that is all that can be said. But what is absurd is the confrontation of the irrational and the wild longing for clarity whose call echoes in the human heart.** 1 Introduction As a law student, Kafka observed in his diaries that learning ""the"" law is like eating sawdust. The law grinds down its supplicants.1 Having been a law student myself, I felt on many occasions inclined to agree.

Extracted from text ...DID THE SUPREME COURT OF THE COLONY OF THE CAPE OF GOOD HOPE HAVE EQUITY JURISDICTION? Philip J Thomas (University of Pretoria) 1 Introduction Society, the law and transformation form an interesting threefold in that, while society is in a permanent state of transformation, 1 the law is notoriously slow in making changes. A case in point is the decision in Bank of Lisbon v De Ornelas, 2 where the Appellate Division (as it was then) held ex post facto that the exceptio doli had never been part of Roman-Dutch law3 and stated in the same breath that ..